This week, lawmakers and regulators made a fresh push to strengthen privacy and safety protections for children online, introducing a flood of bills and enforcement proposals with varying amounts of support from their colleagues, civil liberties groups, and tech trade associations alike. The burst of action comes on the heels of an ongoing youth mental health crisis that seemingly all stakeholders want to resolve, but many fear these proposals could create new problems for children and members of marginalized communities online.
The largely bipartisan bills were filed in quick succession. Last Wednesday, a group of senators introduced the Protecting Kids on Social Media Act, which would establish a nationwide age verification pilot program and ban kids under 13 from social media. On Tuesday, the Kids Online Privacy Act made a long-rumored reappearance in the Senate. The day after that, Sen. Ed Markey reintroduced “COPPA 2.0,” which would raise the age of protection under the Children’s Online Privacy Protection Act from 13 to 16 years of age. And yesterday, the controversial EARN IT Act advanced out of committee for a second time.
While the conversation over protecting kids online traces back to the 1990s, discussions to update current law gained new momentum only a few years ago. In October 2021, Facebook whistleblower Frances Haugen leaked a trove of documents from the company detailing how its products harm the mental health of children and teens. As a result, Congress held hearings hauling in Facebook executives and introduced new bills to restrict how platforms treat the data of their young users. Other lawmakers have targeted a surge in child sexual abuse material online, blaming tech shield law Section 230 for its spread.
The two measures with the most momentum — and the most pushback — are KOSA and the EARN IT Act. KOSA is supposed to prevent kids from seeing harmful content by implementing a new legal standard that makes it easier for the Federal Trade Commission and state attorneys general to sue if they fail to proactively remove the content. KOSA’s co-sponsors, Sens. Marsha Blackburn (R-TN) and Richard Blumenthal (D-CT), say that the bill would prevent kids from seeing harmful material like posts glamorizing eating disorders, suicidal thoughts, substance abuse, or gambling.
“Record levels of hopelessness and despair — a national teen mental health crisis”
“Record levels of hopelessness and despair — a national teen mental health crisis — have been fueled by black box algorithms featuring eating disorders, bullying, suicidal thoughts, and more,” Blumenthal said in a statement reintroducing the bill Tuesday. “Kids and parents want to take back control over their online lives.”
Separately, the EARN IT Act, championed by Blumenthal and Sen. Lindsey Graham (R-SC), attempts to combat the spread of child sexual abuse material online by conditioning a platform’s Section 230 protection on it proactively removing the unlawful content.
Despite the measures’ admirable goals, both KOSA and EARN IT have sparked fear amongst civil rights groups and pro-tech lobbying groups over their potential to restrict free speech, chill encryption adoption, or force platforms to collect even more data from children to be enforced. Both bills have undergone significant changes since their original introductions to fix these problems, but their critics have continued to withhold support.
During a Wednesday press conference, Evan Greer, director of the digital liberties group Fight for the Future, said that her organization agreed that big tech companies actively hurt kids, but “the bills that we are talking about today will make all of the problems that we are discussing worse, not better.”
“The bills that we are talking about today will make all of the problems that we are discussing worse, not better.”
These criticisms haven’t slowed efforts to pass them. A bipartisan group of two dozen senators supports KOSA, including powerful Senate leaders like House Majority Leader Chuck Schumer, according to statements from Blumenthal reported by The Washington Post on Wednesday. The Senate Judiciary Committee approved the EARN IT Act on Thursday, teeing up for a final vote on the floor. Committee members passed the bill by a unanimous voice vote, despite several Democratic members raising questions over whether it would threaten widespread encryption adoption.
“I have a real concern in this bill about issues of cybersecurity and how we might empower the government to do things to target disadvantaged groups for more harassment and discrimination,” Sen. Cory Booker (D-NJ) said ahead of Thursday’s vote.
Sen. Jon Ossoff (D-GA) echoed similar sentiments. “It is important that we not unintentionally in the construction of this legislation cause there to be significant damage to the basic architecture of cybersecurity, which does rely upon encryption technology,” he said.
In his past two State of the Union addresses, President Joe Biden has called on Congress to enact stronger online privacy protections for children. Specifically, he’s demanded new rules banning tech companies from collecting kids’ data and subjecting them to targeted advertising.
But as Biden’s 2024 reelection campaign heats up, the administration is losing valuable time to make these demands a reality.
Unlike Congress, regulators like the Federal Trade Commission can oftentimes take swift action to solve outstanding privacy issues. On Wednesday, the agency proposed changes to a 2020 privacy order with Facebook that would ban Meta platforms, including Instagram, WhatsApp, and Oculus, from monetizing the data they collect from users under the age of 18. It would also bar the company from releasing new products, services, or updates to existing ones without the approval of an independent privacy assessor.
The proposal comes after an FTC assessment found that Meta had violated the 2020 order and COPPA by misleading parents that its Messenger Kids service prevented kids from using it to chat with people their parents hadn’t approved.
The order is still in its beginning stages, and Meta has a chance to respond. All three Democrats at the agency signed off on starting the process to roll out these restrictions, but Commissioner Alvaro Bedoya questioned whether the FTC had the authority to make these changes under current law. It’s unclear if all three will again vote to approve the final changes or when a vote to do so would take place.
While the Senate seems focused on approving new child protections quickly, getting any of these measures approved by the House may be their biggest challenge. Speaker Kevin McCarthy (R-CA) and his caucus are more focused on the current debt ceiling crisis than children’s privacy. Even House Democrats in committees like the Energy and Commerce Committee are getting more aggressive on national privacy protections for everyone, not just minors. But with 2024 breathing down Biden’s neck, it could push the administration to act before next November.